Supreme Court strikes down heart of Voting Rights Act: ‘Our country has changed’

Liz Goodwin

Senior National Affairs Reporter

Yahoo! News•June 25, 2013

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President Barack Obama and his attorney general said they were "deeply disappointed" by the Supreme Court's decision to strike down a key part of the Voting Rights Act, a cornerstone of the civil rights movement that helped dismantle decades of discriminatory voting restrictions in the South when it passed 60 years ago. The vote was split 5-4, with the court's liberal justices dissenting.

The decision drastically scales back the federal government's power to reject state laws it believes discriminate against minority voters, which include some efforts to tighten identification requirements and limit early voting hours at the ballot box. A wave of such laws swept 30 states over the past few years, and the Obama administration has aggressively fought them in court.

The president said he was "deeply disappointed" by the decision in a statement on Tuesday. "While today’s decision is a setback, it doesn’t represent the end of our efforts to end voting discrimination," Obama said. "I am calling on Congress to pass legislation to ensure every American has equal access to the polls."

Section 5 of the Voting Rights Act—reauthorized by Congress for an additional 25 years in 2006—gives the federal government the ability to pre-emptively reject changes to election law in states and counties that have a history of discriminating against minority voters. The law covers nine states and portions of seven more, most of them in the South. The formula used to decide which states are subject to this special scrutiny (set out in Section 4 of the law) is based on decades-old voter turnout and registration data, the justices ruled, which is unfair to the states covered under it. States that had a discriminatory poll test in the 1960s and low turnout among minority voters must seek special permission from the federal government to change their election laws, even though many of these states now have near-equal voter turnout rates between minorities and whites.

"The coverage formula that Congress reauthorized in 2006 ignores these developments, keeping the focus on decades-old data relevant to decades-old problems," Chief Justice John Roberts wrote in the opinion. "Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."

The Justice Department used Section 5 of the law to block voter ID laws in Texas and South Carolina last year, and it also struck down early voting restrictions in five counties in Florida. (Minority voters are more likely than white voters to vote early in person, and they are less likely than whites to have a government-issued photo ID.) Some Democrats argued that these laws were intentionally trying to suppress minority turnout in order to benefit Republicans. Texas is already beginning to implement its voter ID law given the court's decision Tuesday.

The court has effectively now put the ball back in Congress' court, writing in its decision that it is up to Congress to write a new formula that is based on current data. States or counties that fit the new formula could still be subject to federal "preclearance" of changes to their elections procedures. It remains to be seen whether Congress, which is now more partisanly divided than in 2006, would tackle the challenge of creating a new rubric to find and eradicate racial discrimination at the polls. The president called on Congress to pass legislation addressing the ruling in a statement on Tuesday.

In her dissent, Justice Ruth Bader Ginsburg writes the "sad irony" of Roberts' decision is that it strikes down the key part of the Voting Rights Act because it has been so successful at preventing racial discrimination. "Throwing out preclearance when it has worked and is continuing to work is like throwing away your umbrella in a rainstorm because you are not getting wet," she writes. Ginsburg also slams the court's majority for relying on turnout and registration rates "as if that were the whole story" and ignoring so-called second-generation laws and regulations designed to make it harder for minorities to vote. (One such Mississippi regulation sought to cancel a local election in 2001 because black candidates announced their intention to run.)

Civil rights groups warned that the decision will negatively affect minority voters who live in the covered jurisdictions. "This is a sad day for democracy," said Myrna Perez, deputy director of the Brennan Center for Justice advocacy center. "The Voting Rights Act is a needed and instrumental tool in our fight to eradicate racial discrimination, and the Supreme Court's decision today has made it much harder to utilize this tool effectively." Wade Henderson, president of the Leadership Conference on Civil and Human Rights, said in a statement that Congress should act to draft another coverage formula. "We urge Congress to act with urgency and on a bipartisan basis to protect voting rights for minorities," Henderson said. Brennan Center for Justice President Michael Waldman said Congress had a "duty" to update the formula. It's unclear what factors would go into a new formula, however, since voter registration and turnout data would not work.

"This decision represents a serious setback for voting rights—and has the potential to negatively affect millions of Americans across the country," Attorney General Eric Holder said on Tuesday afternoon. "I am hopeful that new protections can and will pass in this session of Congress."

Sen. Chuck Schumer, a Democrat from New York, said in a statement that "as long as Republicans have a majority in the House and Democrats don't have 60 votes in the Senate, there will be no preclearance."

Discriminating against minority voters is still illegal under the act, but those who hope to challenge discriminatory actions would have to do so through the regular court process, which takes longer than the special preclearance pathway set up under the law.

Court watchers predicted the decision, given the conservative justices' comments on the law during oral arguments and in other cases. Justices in the conservative wing of the Supreme Court, including Roberts, expressed reservations that the nine Southern states covered by the law still required the same degree of federal oversight that they did 60 years ago. "Voter turnout and registration rates [between blacks and whites] now approach parity," Roberts wrote in a decision in 2009. "Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."

Another argument against Section 4's constitutionality was that it's unclear whether minority voters in Southern states are more likely to face discrimination at the polls than they are in other states. Voter ID laws, for example, have passed in states such as Wisconsin, Pennsylvania and Indiana. Because those states do not have a history of voter discrimination—and are not covered by the act—their voter ID laws did not have to first pass federal inspection. That said, Southern states covered under the act were much more likely to pass a voter ID law than other states. Seven of the nine states covered in full under the act adopted such a law, compared with 12 noncovered states. Also, the law allowed counties to remove themselves from the preclearance list if they demonstrated they had not discriminated against minority voters in recent years.